Archive for May, 2010

That’s an odd thing to write, wouldn’t you agree? After all, a big part of what I do is write and if people don’t believe what I write, then I’m in a bit of trouble. Anyway, I was surfing some “social networking” sites today (I’m not going to tell you which one, but it was a primarily business-related site that lets people make connections with others and form groups) and I ran across a link that took me to an article that made me think of this little saying. I don’t know whose quote this is, but my mom tells me, over and over again, (you’ve got a mom so you know what I’m talking about when I say over and over again, right?) that this saying is something my grandfather often said. (I was pretty young when my grandfather passed away so I didn’t get the benefit of his wisdom, so I’m just going to have to take my mom’s word for it.) Anyway, she claims my grandfather used to say: “Don’t believe anything you read and only half of what you see.” Makes you think that my grandfather grew up reading today’s papers doesn’t it? But no, my grandfather was born in 1896.

Back to the point. I was surfing through some groups on this social networking site and came across a “discussion” in an HR group and that discussion linked to a blog that is supposedly aimed at those over 40 looking for a job. This particular blog post dealt with “age discrimination” and it asked what do you do if you are in an interview and someone asks you how old you are? The author said your normal response would be to say that the question is illegal and then he wrote “AND YOU WOULD BE WRONG.”

That’s when I stopped reading. Could this dude seriously be telling us that it is okay for you to ask someone how old they are in a job interview? That’s the way I read it. And if I’m right, well you know what’s next, he is WRONG!!!!!

Now let’s guess who is really wrong, Me, or the guy who wrote the post in the HR group (ok, I know you know the answer to this question to, don’t you?). It was that dude, not me who is wrong, I’m never wrong (well, almost never). You don’t believe me? Let’s look at the Michigan Pre-Employment Inquiry Guide. Under the subject “Age” and the heading “Unlawful Pre-Employment Inquiries” the guide says “Applicant’s age or date of birth.” So, just in case you didn’t already know this or you also happened to read the same blog I did, YOU CAN’T ASK SOMEONE HOW OLD THEY ARE IN A JOB INTERVIEW!!!!!

I know, I know, that information is written too, so why should I believe that? How about because the people at the MDCR, the ones fielding the complaints filed by applicants who are being asked how old they are, will believe it.

I have loved baseball my entire life and still do. When I was a little kid we didn’t have 500 TV channels. So if you wanted to hear the game, and I mean hear the game, not see the game, you couldn’t see the game, it wasn’t on TV, you listened on the radio. Some little transistor thing with a big antenna that pulled out of the top. I’m a Tigers Fan, and if you were a Tigers fan, when you listened to the game on the radio, the voice you heard was Ernie Harwell’s.

I remember like it was yesterday. A hot summer night with a breeze blowing in my window. The Tigers are on a west coast road trip. I’m in bed, because I couldn’t stay up that late. So I tucked that transistor radio under my pillow with the volume just loud enough so I could hear Ernie call the game but not loud enough for my mom to hear. Ernie with that smooth delivery and all the catch phrases. I feel asleep on a lot of summer nights listening to: “He’s called out for excessive window shopping” or “He stood there like the house on the side of the road.”

Ernie seemed to know everyone at Tiger stadium. I was always amazed that whenever a ball was fouled off into the stands Ernie seemed to know where the guy who caught it was from. “And that one was grabbed by a gentleman from Wixom.”

There have been a lot of great baseball announcers over the years, but for me, the voice of the game has always been Ernie’s.

It’s been an interesting year so far for those of us who practice labor and employment law. First, Congress and the President gave us the LedbetterFair Pay Act. Then the Employee Free Choice Act got put off for who knows how long (with a bit of luck, forever). Then, over the strong objection of some business groups, the President made recess appointments to fill vacancies on both the National Labor Relations Board (3 new members) and the Equal Employment Opportunity Commission (4 to the EEOC). For the first time in a long time the NLRB and the EEOC both have a full compliment of members and the EEOC has a new General Counsel. So what’s next? Well, only time will tell what the NRLB and the EEOC will do. And we still don’t know what Congress is going to do next: Are they back after the EFCA? Will we see passage of Employment Nondiscrimination Act, or maybe it’s the Paycheck Fairness Act, all of which are currently pending.

Well, at least the Department of Labor is not keeping us waiting. Oh, joy. On April 26, 2010 the DOL published, in the Federal Register, its Semiannual Regulatory Agenda. In a video message posted on the DOL website Secretary of Labor Hilda Solis announced the DOL’s “Plan/Prevent/Protect”Initiative. Secretary Solis informs the public that the DOL is proposing 78 new rules in its’ 2010 regulatory agenda. In the video, Secretary Solis decries what she calls the “catch me if you can” model of current labor regulation, wherein some “employers make calculated decisions not to comply with employment laws.” She says, that instead, the new initiative is designed to expand the DOL’s effort to “ensure compliance with labor laws.” Secretary Solis explains the new Plan/Prevent/Protect Initiative as follows:

Plan means employers will be required to “create a plan to find and fix violations of the law.”

Prevent means that employers’ will be required to implement their plan in a “manner that prevents violations of the law.”

Protect means that employers must make sure that the plan “actually does what it is supposed to do.

Secretary Solis goes on to say that employers who fail to do these things will be “considered out of compliance with the law.”

To give you a taste of what the Secretary is talking about, one of the sets of regulations under consideration for changes are the regulations related to the Fair Labor Standards Act. For example, the Wage Hour Division of the DOL is proposing that the record keeping requirements of the FLSA be updated to “foster openness and transparency, to increase awareness among workers, and to encourage greater compliance by employers.” DOL is considering rule changes that will require employers to provide greater information to employees about how hours worked are recorded and how wages are computed. In addition, the proposal will require that if and employer seeks to “exclude a worker” from coverage (by hiring them as an independent contractor for example) the employer will be “required to perform a classification analysis and disclose that analysis to the worker.” The employer will also be required to keep the analysis and provide it to the WHD on demand.

Of course, all of this is simply a proposal at this point. But you just never know what’s next. We will keep an eye on what is going on. In the meantime, if you want to see the Secretary’s message, or see all 78 sets of regulations under consideration for revision, you can find them athttp://www.dol.gov/regulations/. And if you are ready to Plan, Prevent and Protect your business, give us a call.

About

Steven Palazzolo brings a unique and varied background to the practice of labor and employment law. Prior to attending law school, Steve spent seven years as a shop floor supervisor in both union and non-union food processing plants. Steve also spent 11 years as in-house counsel specializing in labor and employment law for a multi-billion-dollar multinational corporation with extensive manufacturing operations. During this time Steve also supervised a staff of HR professionals. Steve represents employers, emphasizing counseling clients on employee relations issues, policy development, NLRB, ADA, FMLA and international labor relations. Steve has experience in acquisitions, immigration, employee benefits, campaign finance, employment litigation, civil rights and related issues, and has provided counsel to companies in the agricultural, food processing, hospitality, manufacturing and marketing industries in the United States, South and Central America, Europe and Asia. He currently provides counsel to a variety of leading Midwest businesses.

Don’t forget, this blog is for informational purposes only and is not intended to provide legal advice. You should not act based solely on the contents of this blog. The answers to legal questions often depend upon the specific matter at hand. If you have a legal question, contact your lawyer. For more information or a consultation contact spalazzolo@wnj.com.